Righthaven Loses Big Yet Again, Cementing Two Previous Issues

from the no-standing-and-fair-use dept

It appears that Righthaven continues to lose big in its questionable mass lawsuit business model strategy. The latest ruling (embedded below) in one of the cases reinforces two key issues on which Righthaven has already lost in previous rulings, and once again suggests that the entire basis for Righthaven's existence may be a castle made of sand that has long since washed away.

First up, we have the question of standing -- which was what last week's big ruling was about. In that case, Judge Roger Hunt took apart Righthaven and Stephens Media's bogus claim that Righthaven ever actually owned one of the key rights granted by copyright law. As we've explained a few times, in order to be able to sue over copyright, you have to actually hold one of the specific rights listed in Section 106 of the copyright law. What's not allowed is the transferring of the "bare" right to sue. If you hold one of the enumerated rights, you can also take with it the right to sue over any infringement of that right. But without the rights, you're in trouble. This is the second judge that has found Righthaven in serious trouble over this issue.

As in the Hunt ruling, this ruling, by Judge Philip Pro, finds that it's quite clear from the nature of the agreement between Stephens and Righthaven, that the entire point of those agreements was to try to get around what the law says, and provide Righthaven with just the right to sue, and that's not allowed:

Here, the rights in the copyrighted Work retained by Stephens Media deprive Righthaven of everything except the right to pursue alleged infringers, a right that is still subject to Stephens Media’s oversight. Accordingly, Righthaven does not possess an exclusive right in the Work and therefore does not have standing to bring a suit for infringement.

It seems pretty straightforward: if you don't have any of the specific rights under section 106, you don't have a right to sue. Done deal.

Separately, Judge Pro, like Judge Hunt, indicates that Righthaven and Stephens Media's attempt at the beginning of May to "clarify" their agreement fails to fix this basic problem. Righthaven has been insisting that the "Clarification" solved any questions of standing, but both of the judges seem to indicate otherwise.

Judge Pro then goes on to point out that even if Righthaven had the copyright and had standing, it would still lose, because of fair use. This is the second such case to find that, and once again highlights how for all the complaints about Righthaven, it's aggressive attempt to stretch copyright law has served to help create a wonderful body of case law that will be quite useful in the future. We've regularly seen people claim -- incorrectly -- that if you use the full work, there is no fair use. Yet, there are plenty of cases that prove this to be untrue, and now we've got another one, with the explanation clearly laid out. Judge Pro walks neatly through the four factors test:

The Purpose and Character of the Use: Here, the judge finds the fact that Hoehn was using the article in order to create a discussion, and was doing so in a way entirely differently than the rightsholder, to lean towards a ruling of fair use:

It is undisputed that Hoehn did not and could not profit from posting the Work. Under Sony, noncommercial/nonprofit use is presumptively fair. Additionally, this factor focuses on the purpose or character of the new work. Here, Hoehn posted the Work as part of an online discussion. Hoehn avers he posted the Work to foster discussion in a specific interactive website forum regarding the recent budget shortfalls facing state governments. This purpose is consistent with comment, for which 17 U.S.C. § 107 provides fair use protection. There is no genuine issue of material fact that Hoehn’s noncommercial use of the Work for comment favors a finding that the use was fair.

This is a great ruling for people who post works of others for the purpose of discussion.

The Nature of the Copyrighted Work: This is a surprising, but welcome statement from Judge Pro. He notes that much of the article in question may not actually deserve any real copyright protection at all, as it just provides factual data, and such is not intended to be protected by copyright law.

The Work is an editorial originally published in the LVRJ. The Work is a combination of an informational piece with some creative elements. Roughly eight of the nineteen paragraphs of the Work provide purely factual data, about five are purely creative opinions of the author, and the rest are a mix of factual and creative elements. While the Work does have some creative or editorial elements, these elements are not enough to consider the Work a purely “creative work” in the realm of fictional stories, song lyrics, or Barbie dolls. Accordingly, the Work is not within “the core of intended copyright protection.”

This part of the ruling could certainly be useful in future cases, in noting that just because someone writes an article or creates some form of content, it shouldn't automatically get copyright on the entirety of the work, if not all of it reaches the level of creative input necessary to qualify for copyright. This is a point that is often lost in discussions of copyright.

The Amount Used: This is the big question. This is why many people, falsely, assume that any time "all" of a work is being used, it cannot be fair use. However, as we've pointed out time and time again, that's simply not true, and this case reinforces that point. Here, Judge Pro notes that there's no dispute that all of the work was being used, but points out that this is just one factor in the four factor test, and that "wholesale copying does not preclude a finding of fair use." If the other sections weigh heavily towards fair use, that'll outweigh this point -- which is what happened in this case.

The Effect Upon the Potential Market for the Work: In the end, for all the discussions of the four factors, it's this factor that quite frequently is the make-or-break factor in determining fair use, which intuitively makes sense. If the use hurts a market, people are generally wary of saying it's fair. If it doesn't hurt the market, it's much easier to claim it's fair. In this case, the court notes that there's no real impact on the market:

It is undisputed that Hoehn’s use of the Work is noncommercial. Challenges to noncommercial use require a showing that the particular use is harmful or negatively impacts the potential market for the copyrighted work. Id. Righthaven has not presented evidence raising a genuine issue of material fact that Hoehn’s use is harmful. Rather, Righthaven contends that because Hoehn replicated the entirety of the Work “[s]uch circumstances warrant the conclusion that [Hoehn’s] infringement has likely caused a substantial impairment on the potential market for the Work and that [Hoehn’s] infringing copy of the Work fulfilled the demand for the original.” (Resp. (Doc. #13) at 12-13.) Additionally, Righthaven argues that the market for the Work was impacted negatively because potential readers are able to read the Work on the Website and would have no reason to view the Work at its original source of publication. However, Righthaven has not presented any evidence of harm or negative impact from Hoehn’s use of the Work on the Website between November 29, 2010 and January 6, 2011. Merely arguing that because Hoehn replicated the entirety of the Work the market for the Work was diminished is not sufficient to show harm. Therefore, Righthaven has not presented evidence raising a genuine issue of material fact that the fourth factor favors a finding of fair use.

I have to admit that I think this section could be much stronger against Righthaven, and am a bit disappointed that the judge didn't take the next step. It's important to note that this factor is supposed to be about the impact on the market for the copyright holder, and if we assume (as the court is doing in this case) that Righthaven is, in fact, the copyright holder, the argument on this factor looks even worse for Righthaven. That's because, based on Righthaven's situation and the limited rights it has, the only "market" it has control over is the market to sue. That's it's sole source of revenue for what bits of this copyright it might own (but probably doesn't). So, if we look at that, we see no impact whatsoever, because it's not as if the guy here (Hoehn) is going to compete with Righthaven in suing over the work.

Either way, it's yet another good ruling for sanity, and another nail in the coffin for Righthaven on both counts -- while at the same time adding some more case law to the pile. Of course, these are only district court rulings, and this could get interesting depending on what an appeals court says (if it gets ahold of one these cases). In the meantime though, it seems like Righthaven is giving us some nice case law to build on.

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um, how can you perceive a personal attack. you hide behind 'anonymous coward' so that we don't know who you are. therefore, you are not person.

'I disagree and I state my reasons for believing what I believe.'

you haven't stated anything. you don't exist and we cannot see where you have disagreed with anything. your arguments have no value because no one stands behind them. man-up and get an account so we can have a real discussion.

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That is true in many cases, especially with a standalone statement. But it is not true in an ongoing conversational format such as the Techdirt comments.

Generally these debates stretch out over multiple comment threads across multiple posts, with callbacks to previously made points. By posting anonymously, you save yourself from ever being held accountable to things you have said in the past - all you need is a new IP address to give you plausible deniability. Thus you will never be forced to admit you are wrong even if you are proven incontrovertibly so, and you will never be forced to re-examine your past assertions in the light of new information.

Additionally, at least some ACs have made it clear that they have affiliations which effect their views on these topics, as legal workers and policy circle folk and so on. Now, when I get in debates here, some of the ACs just love "digging up" things about me (as though I'd be caught off guard by stuff on page two of my google results) or hilariously attempting to pit me against my own clients. While it's never substantial or even meaningful, it is irritating since it is clearly a tactic they use to derail the debate while hiding behind an AC label that protects them from the same actions.

Now, fundamentally there is nothing wrong with any of that and I fully support your right to be anonymous if you choose. But there's a difference between supporting a right and respecting a decision - and in this case, it is very hard to respect your decision. I feel that if you truly believed everything you say and were prepared to defend it, you would give yourself an identity (if not an account then at least a name). Since you don't, it casts pretty serious doubt on your motives and the sincerity of your arguments.a

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Marcus, you sound like a shill for the anti-copyright movement at times yourself.

I think you are very quick to label anyone who doesn't agree with your views as a shill for the other side. You should perhaps broaden your understanding of the world to accept that some people with nothing to do with the movie or music industries support copyright.

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Ha! Well, thanks to the fact that I DO have an account, you can look through my comments and see that I have actually very, very rarely accused anyone of being a shill. I find that to be a weak line of argument and I try to avoid it, even when I do have my suspicions (though I admit to having used it on one or two occasions) - so thank you for rather nicely demonstrating my point.

And If you actually read my comment above, you will see that I'm not accusing anyone of being a "shill" there either. But some ACs have themselves admitted, or at least hinted, that they have an interest or stake in these topics through their employment. The fact that they are anonymous is what makes them look like shills. If they were open about their identity and employer, then while some people may feel they are biased nobody could accuse them of being dishonest.

So let's try this: I accuse YOU of always calling people shills. I assert that YOU do it every day! I can prove your accusation wrong - just go look at my comment history. Can you prove me wrong?

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As someone who has pretty much never accused anyone of being a shill, I'm hardly a "hammer" here.

I also never said "simply being anonymous" makes them look like shills - it's being anonymous while also seeming to be wantonly disingenuous and while also hinting that they have connections to relevant industries. Put all that together, and I don't think any reasonable person wouldn't wonder a little bit about their motives.

But the main thing here is, I never said anything about shills. If you look at my first comment, yes I said sometimes I doubt their motives and sincerity, but that doesn't mean I think they are being paid to astroturf - it simply means that I am not always convinced they stand behind what they are saying for the right reasons. Maybe its personal bias, professional bias, an emotional reaction, or mere love of argument - there are lots of reasons I might question someone's motives long before it even crossed my mind that they could be a paid shill.

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"Thus you will never be forced to admit you are wrong even if you are proven incontrovertibly so, and you will never be forced to re-examine your past assertions in the light of new information."

And yet, some people admit mistakes even when they are not "forced" to do so.

Regardless, your points do not lead to the conclusion that "your statements have no value, because no one stands behind them." As you acknowledge, some statements (such as logical arguments or if/then statements) can in fact be evaluated on their merits, without knowing who makes them. I also freely admit that some factual claims are validly subject to skepticism if you don't have any confidence in the person making them, or that person doesn't cite a source (it is for this that I usually dismiss any unsourced claim by the eejit or Jay).

As for my decision (and that of some others) to remain anonymous, I am a professional advocate. I don't (knowingly) touch comments here that deal with any of my clients or my firm's clients.

Nevertheless, I also don't want anything I say here coming back to bite me in a professional context. I don't care if someone here on Techdirt can look back at my past comments and try to use them against me in current/future comments. I sort of wish that were easier to do, so that people would stop attributing things to me that I've never said (though I doubt it would make much difference, since so many people think all attorneys, or all who believe in some form of IP protection, say/think/do the same things).

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Partially I blame TAM (the AC above, who USED to have an account but then chickened out because he couldn't handle accountability) for derailing this conversation above (he's good at that!) by making it all about shills when that really wasn't the point I was initially trying to get at. To me a consistent identity is what's important, not necessarily a real one - for example if you wanted it to be easier for people to quote you, you could start by at least changing "Anonymous Coward" to a name of some sort, which you can do without even starting an account. Of course, you could also easily start an account and supply no personally identifying information, like many (most?) Techdirt users, and then you would have the benefit of a comment history like the rest of us.

I've been dragged into this shill talk when that's really not what I care about. As I said above, I rarely if ever accuse people of being shills - and it does indeed seem kind of like a silly idea (though I'm sure it happens sometimes). I do, however, find it unimpressive that many of the ACs (especially the aforementioned TAM) are eager to use my identity against me while hiding their own.

Unfortunately, this case goes a long way to proving that the current laws (DMCA) heavily favour infringer, and as such, is likely to get changed to block the clear holes that people are driving though.

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"Unfortunately, this case goes a long way to proving that the current laws (DMCA) heavily favour the" copyright owner, "and as such, is likely to get changed to block the clear holes that" the other stakeholders (the rest of us) are being litigated "though.

Thanks to the courts for making it clear!"

FTFY... except for the horrible grammar errors; they are more illustratively useful as is.

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Correct me if I'm wrong, but this doesn't have a damn thing to do with the DMCA. This is about way more fundamental stuff to do with rights and standing in copyright - it would be the exact same debate offline as on. Same goes for fair use, which is not part of the DMCA.

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Unfortunately, this case goes a long way to proving that the current laws (DMCA) heavily favour infringer, and as such, is likely to get changed to block the clear holes that people are driving though.

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A paid troll would be somebody who posts comments on a website where the bulk of the conversation is contrary to his own paid beliefs. His comments are usually rude, taunting, and never actually refute the claims made by his opponents (which, if they did, we would welcome them). If he had any valid points, he could share them...but since he doesn't, he reverts to personal attacks and name calling with red herrings and strawmen abound.

It's late and I'm bored, so I'll start the ball rolling on what will surely be another debate about Righthaven's standing (or lack thereof). I know I'll be called an "idiot" and a "troll." That's OK. I'll try not to let it get to me this time. The fact is, I enjoy thinking about this as a legal puzzle that needs to be solved. I don't care if Righthaven wins or loses. I believe that Righthaven has acted in bad faith by not disclosing Stephens' interest in the lawsuits (the 50-50 split), and I think/hope they should be sanctioned for that. I'm not a Righthaven apologist.

That said, I think Judge Pro's analysis misses the mark. I should point out a problem that he and Judge Hunt have in deciding this case: There just isn't authority you can point to that settles the issue. There is some authority that could be analogized to, but that authority cuts both ways. The problem for Righthaven is that these judges think they've acted in bad faith. You can guess which way a judge will rule when they feel this way. I know for a fact that judges often work backwards. They tell their clerks, "I don't like so-and-so, so I need you to find me something to hang my hat on to decide against them." It happens.

Judge Pro relies on two cases in his standing analysis: Nafal and Lahiri.

Judge Pro's analysis of Nafal conveniently leaves out the fact that that case was decided under the 1909 Copyright Act instead of the 1976 Copyright Act. Since Nafal hadn't joined his assignor, he was going to lose the standing issue anyway. Nevertheless the court analyzed his standing. Of course, all of that analysis is necessarily dicta. Conveniently, Judge Pro leaves out this fact as well.

What's worse, the test in Nafal, as devised by the court, was whether Nafal had the exact same rights as his co-exclusive licensee. Yes, the issue there dealt with the rights of a licensee instead of the rights of an assignee, another reason to distinguish the case. All the court had to find was one way that the relative rights differed, and Nafal would be found to lack standing.

That test is inapposite here. Nowhere does it say that an assignee must possess the same rights as his assignor in order for the assignment to be valid. Judge Pro intimates otherwise, but offers no authority whatsoever for the proposition. Nor do I think any such authority exists.

So we have a case dealing with a different test under much different circumstances related in dicta. Not good analysis.

Lahiri is even more of a stretch than Nafal. That case dealt with a very dishonest lawyer who was being sanctioned for lying to the court about his client's copyright. The copyright ownership issue was governed by the laws of India. The lawyer lied to the court about a very important ruling from the Supreme Court of India. Basically, he told the court that his client owned the copyright in music he composed for a movie. Under Indian law, the copyright was in fact held by movie company who commissioned the work, much akin to our work for hire doctrine.

On top of that, the lawyer lied to the court about an agreement between his client and another party. He claimed this agreement gave his client co-ownership of the copyright. In fact, this agreement only gave his client a one-half interest in whatever recovery might come from the lawsuit. Lahiri does no work in this case for the simple reason that the agreement there involved co-ownership of the proceeds of the recovery. The assignment used ownership language, true, but it did not purport to give ownership to the client. It's nothing like the assignment here that does explicitly give ownership.

My biggest problem with Judge Hunt's and Judge Pro's analysis is that they look at what Righthaven has left after the assignment and the SAA. Since the SAA includes a grant of an exclusive license to Stephens, of course it appears that Righthaven does not have any exclusive rights. That will always be the case whenever anyone licenses away the 106 rights.

The issue of standing, in my opinion, turns on the first half of the SAA and the assignment, the part where Stephens assigns its ownership interests in the copyright (and the accrued right to sue) to Righthaven. The subsequent grant of a license from Righthaven to Stephens is irrelevant. What no one has produced is any authority that states once an owner of a copyright grants an exclusive license to another, that owner loses standing to sue for past infringements. Nor do I think any such authority exists. I've looked.

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I read your post last night in the other thread. I'm not schooled in the law. But this issue of authority had me puzzled - is the judge in the case not the authority? If he/she isn't, then who is?

Seemed to me Judge Pro laid out his reasoning for fair usage pretty well, at least. The agreement stuff...I've read the back and forthing here and, in my uneducated opinion, Righthaven and Stephens Media tried a sneaky end run around the whole rights licensing for lawsuit purposes thing and these 2 judges (Hunt and Pro) are calling it out and drawing the line...using their authority as judges to do so.

Does your use of the word 'authority' have some law-specific meaning I'm not understanding?

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I also think the authority issue as laid out by AJ above is a red herring--what he doesn't address is whether Righthaven can possibly claim harm, which is required for showing infringement.

Let's say that not holding 106 rights doesn't matter. But if Righthaven is not a content provider and is not competing in this space, how can they ever claim harm? A criteria of future harm is equally unsettled and IMHO a very bad approach (pretty much anyone can make up or dispute future harm).

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I also think the authority issue as laid out by AJ above is a red herring--what he doesn't address is whether Righthaven can possibly claim harm, which is required for showing infringement.

Let's say that not holding 106 rights doesn't matter. But if Righthaven is not a content provider and is not competing in this space, how can they ever claim harm? A criteria of future harm is equally unsettled and IMHO a very bad approach (pretty much anyone can make up or dispute

I think the simple answer is that Righthaven is "stepping into the shoes" of their assignor Stephens. The court fictitiously pretends like it's Stephens before the court. They're supposed to anyway. That's my understanding, but I could be wrong. I haven't researched the issue much.

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I think the simple answer is that Righthaven is "stepping into the shoes" of their assignor Stephens. The court fictitiously pretends like it's Stephens before the court. They're supposed to anyway. That's my understanding, but I could be wrong. I haven't researched the issue much.
If this were the case, why didn't Stephens just hire Righthaven to prosecute their suit, instead of trying this whole thing with assigning rights?

Just guessing, maybe they didn't want the backlash of negative PR from this move. Which was mildly silly, since it's pretty easy to see where it came from anyway... I'm not sure what exactly they intended to GAIN from this attempt to shift ownership.

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Judge's make their decisions by looking to prior decisions as to what the law is, then apply that body of law to the facts. That prior case law is referred to a "authority" in many cases.

Here, the judge apparently relied on prior cases that had significantly different facts (according to the AC).

Now, if there is not case law with facts very similar to those in this case, that doesn't mean the judge can't make a decision; he just has to try to work with the language of the statute and the closest case law out there.

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I read your post last night in the other thread. I'm not schooled in the law. But this issue of authority had me puzzled - is the judge in the case not the authority? If he/she isn't, then who is?

Good question. There's different types of authority that a judge relies on in making their decision. Some authority is binding on the court. For example, in the Nafal case that Judge Pro cited, there was binding authority from the Ninth Circuit that tied the hands of the district court. The judge in that case had no choice but to decide that Nafal didn't have standing because Nafal hadn't joined his assignor as a plaintiff in the case. There was a circuit split at the time, meaning some circuit courts of appeal used the 1909 copyright laws and some used the 1976 copyright laws. The Ninth Circuit had determined that for a person in Nafal's situation, the 1909 laws applied. This meant that he did not have standing as a matter of law.

All of the rest of the standing analysis became what's called dicta because it was not necessary to decide the issue. It's more like the judge thinking out loud. This doesn't mean that dicta isn't authority. It's the other kind of authority which is persuasive. Other judges can read dicta and decide they like the reasoning of it. If so, they can adopt that reasoning as their own and use it, so long as there's no contrary binding authority that the judge must follow.

That's just what Judge Pro tried to do in this case. He tried to squeeze this case into the reasoning that was used in the Nafal case. The problem is, the comparison doesn't work. In Nafal the facts were different such that whether Nafal had standing turned on whether he held the same exact rights as his purported co-exclusive licensee. The court found several substantial ways that Nafal's rights differed from those of his co-licensee. The judge held that since his rights differed, he did not have standing. Judge Pro tried to analogize the situation here to the facts as they were there, but it doesn't work because there is nothing that says that Righthaven must have the same rights as Stephens had before the assignment. Sure you can point to differences between Stephens' ownership before the transfer and Righthaven's ownership after it. But you can't just point to Nafal and say that that difference matters. The comparison is based on the false premise that if the ownership is different here, then the holding of Nafal applies and there is no standing.

So what is the proper authority? There is no binding caselaw that settles the issue either way. Not that I know of. Nor is there really any caselaw where the facts are similar that is very persuasive. In fact, I think the little persuasive authority there is cuts the other way. The problem I think is that perhaps copyright law is not the place to look. I think the answer lies in the principles of state law, specifically as to contract law, sales law, and property law. When there is no federal copyright law on point which preempts (meaning that federal law trumps state law), you look to state law. I think the ownership issue is a simple state law issue over whether ownership passed when the contract was perfected. I think it did.

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What no one has produced is any authority that states once an owner of a copyright grants an exclusive license to another, that owner loses standing to sue for past infringements.

That entire wall of text (twice!) and this is all you needed to type. I'll grant you that I am not a lawyer, so my next sentence may not have any bearing on the legal system, but from a common sense standpoint (I know, right?) the ruling you have issue with makes perfect sense. One of the functions of holding one of the 106 rights is the ability to sue for infringements. So, if you have given up all those 106 rights, you lose the functions that go along with those rights.

In much the same way, one of the functions of a bat is the ability to hit someone with it. If I give up my bat, I no longer have the ability to hit someone with it, no matter how much I would like to. Furthermore, if someone sells me a bat solely so I can loan it right back to them, this does not magically give me the ability to hit people with my bat, because I have loaned it out.

Like I said, I don't want to go around saying that the law should follow common sense, but there you have it.

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In much the same way, one of the functions of a bat is the ability to hit someone with it. If I give up my bat, I no longer have the ability to hit someone with it, no matter how much I would like to. Furthermore, if someone sells me a bat solely so I can loan it right back to them, this does not magically give me the ability to hit people with my bat, because I have loaned it out.

Good analogy, but I would say it works like this: Let's say someone steals your bat. You know who it is and you go to their house and get it back. Then you "give up" your bat by selling it to someone else. Can you still sue the person who stole your bat even though you've already sold it to someone else? Yes. You may not have the bat anymore, but you haven't lost the right to sue someone in tort for stealing your bat.

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What if you owned some property, and someone trespassed on it. Then you sold the property to me and I leased back the property to you, all except the right to sue for trespass, and sued the trespasser. Would that make any sense?

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Good analogy, but I would say it works like this: Let's say someone steals your bat. You know who it is and you go to their house and get it back. Then you "give up" your bat by selling it to someone else. Can you still sue the person who stole your bat even though you've already sold it to someone else?

Not terrible, but I would say it works like this: Let's say someone steals your bat. You know who it is, but you don't want to bother getting it back.

Some thug on the street corner says, "Hey, I'm going to go over to that guy, and say it was my bat that he stole. I'll say if he doesn't pay me money, I'll threaten to go to the cops. And he'll pay, 'cause a couple thousand is much better than going to prison. Then, we'll split the profits. If anyone asks, just play along."

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The judges think they acted in bad faith, in the same way that any and every reasonable person believes they acted in bad faith. Because they tried to pass the right to sue and the right to sue alone to a third party.
You are apparently one of only a handful of people who fall for the smoke and mirrors trick of pretending to give all the rights to RH and licensing them all back leaving RH with a right to sue.
But there's been enough making fun of you on this.

You have a totally rational view and it is your entitlement to have that view.
On more important matters, there's a bridge in Brooklyn that I can sell you at a bargain price. IM me!

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And I will post my reply in that thread to this one also:

So to shorten the story, in Lahiri, the lawyer was caught in a lie and lost the case, but in Righthaven the lawyers were only caught obfuscating the real truth about the copyright assignments through contracts and subsequently also lost their case, because the judge saw right through their attempt at an end run around the law. Check.

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As I've posted elsewhere in these comments, I think the fair use analysis is pretty flawed.

I think the standing result is correct, though I haven't read his analysis (i.e., how he got to that result).

More to the point, though, the standing issue doesn't (or, at least, shouldn't) turn on the dishonesty of the plaintiff (unless you're explicitly dismissing their case as a sanction, which would be very severe). A dishonest plaintiff can have standing as a matter of law.

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So to shorten the story, in Lahiri, the lawyer was caught in a lie and lost the case, but in Righthaven the lawyers were only caught obfuscating the real truth about the copyright assignments through contracts and subsequently also lost their case, because the judge saw right through their attempt at an end run around the law. Check.

The difference is that the agreement in Lahiri that the lawyer said assigned his client ownership of the copyright said no such thing. Compare that to the agreement here that specifically says that ownership of the copyright transferred. As Judge Pro says in the opinion: "On December 6, 2010, Stephens Media, the original owner of the Work, assigned all rights, title, and interest in and to the Work, including the right to seek redress for all past, present, and future infringements, to Plaintiff Righthaven (the “Assignment”)." It doesn't make sense for the Judge to analogize the Lahiri case because the situations aren't analogous, not in the way that matters for the point he was trying to make.

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To summarize: You have a beef that the judges didn't have an authoritative precedent for their rulings. You know, sometimes there just isn't a precedent. They looked for some related rulings (and why he should have to disclose the other information of those judgements in his own ruling is beyond me) to help guide them to make rulings that are...well...setting a precedent. Your entire authority problem is basically a chicken-egg paradox.

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To summarize: You have a beef that the judges didn't have an authoritative precedent for their rulings. You know, sometimes there just isn't a precedent. They looked for some related rulings (and why he should have to disclose the other information of those judgements in his own ruling is beyond me) to help guide them to make rulings that are...well...setting a precedent. Your entire authority problem is basically a chicken-egg paradox.

My beef is that the analogies that formed the basis of his analysis don't work. If his reasoning is flawed, I think that's worth discussing. I would hope that his analysis wouldn't be based on false premises and sloppy reasoning. There is no chicken-or-egg paradox, so to speak, since he may ground his decision on whatever reasoning actually works. If he can't find an analogous case or binding precedent, he can fashion an equitable remedy based on other authorities like public policy, scholarly writings, etc.

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Judge Pro relies on two cases in his standing analysis: Nafal and Lahiri.

Except that's not true. The judge also quoted (liberally) from Silvers v. Sony, and Sybersound v. UAV. Both those cases support the judge's ruling as well.

As to the other two... Here's why the judge quoted Nafal (in his own words):

In Nafal v. Carter, the court faced a similar disconnect between the parties' label of a transfer of exclusive rights in a copyright assignment and the reality of their transfer.

[...]The court found that the assignment did not make the plaintiff a "co-exclusive licensee" with the right to sue for infringement because the assignment gave the plaintiff no discretion in deciding when to sue an alleged infringer; the plaintiff's interest in the copyrighted work would be terminable if the plaintiff did not bring an infringement lawsuit within a certain time period; nearly every effort by the plaintiff to exploit the copyrighted work had to be approved in advance; and the plaintiff did not offer facts that would permit the inference that he had rights to do anything beyond negotiating "compulsory mechanical licenses, which does not confer Plaintiff with the power to exploit any exclusive rights."

The issue was not "whether Nafal had the exact same rights as his co-exclusive licensee." It was whether Nafal held any exclusive rights at all. It is exactly the same situation as this case.

You're right that it involved pre-1976 copyright law. However, when cases aren't clear in case law post-1976, the courts sometimes look at pre-1976 law for precident - as they did in Gardner v. Nike, a case which you quoted.

As for Lahiri:

the Court found that an assignment that used ownership language but was too restrictive to convey such a right could not transfer an exclusive right. The assignment the plaintiff relied on to establish a right in the copyrighted work transferred only an interest in the recovery based on copyright infringement and no interest in the work itself.

It is, again, exactly on point. (And your description of the lawyer in Lahiri sounds exactly like the Righthaven lawyers, by the way.)

It's nothing like the assignment here that does explicitly give ownership.

The SAA, like the assignment in Lahiri, merely "used ownership language." The SAA also did not transfer any interest in the work itself; in fact, it explicitly said "Righthaven shall have no right or license" in the work, "other than the right to proceeds in association with a Recovery." Since that is not a 106 right, no copyright was ever transferred in the first place.

Nor was it ever intended to be. Even the post-hoc "Clarification" was done - in Righthaven's and Sthephens' own words - "to grant Stephens Media a license to Exploit the Stephens Media Assigned Copyrights for any lawful purpose whatsoever without in any way hindering the right of Righthaven to seek redress for any past, present or future infringements of such copyright."

In other words, even now, they are outright stating that Righthaven was never supposed to "use or authorize" any of the 106 rights. They were never intended to be legal owners. The only purpose of the SAA, both original and "clarified," is to transfer the bare right to sue.

Since the SAA includes a grant of an exclusive license to Stephens, of course it appears that Righthaven does not have any exclusive rights. That will always be the case whenever anyone licenses away the 106 rights.

It "appears" that way because that is exactly what happens "whenever anyone licenses away the 106 rights."

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Exactly the way I saw it. It's like a sham marriage, with a person paying someone to get married and using the legal system and it's laws to get around being deported back to their own country. If the truth comes out, what was legal on paper isn't worth a plugged nickel in court.

Many know that there are always ways around the laws, but if you get caught, don't be surprised when the hammer comes down. Righthaven and Stephens Media got caught with their hand in the copyright jar, and are now getting sent to bed without supper.

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Except that's not true. The judge also quoted (liberally) from Silvers v. Sony, and Sybersound v. UAV. Both those cases support the judge's ruling as well.

Sigh. I said the judge used Nafal and Lahiri. That is 100% true. Did I say those were the only cases he looked at? No. He tried to use these cases as something analogous for him to say, "look, I'm just following these other cases." The only problem is, as I've explained already, is that the analogies don't work. Those were the cases that were central to his holding, and he misapplied them.

As to the other two... Here's why the judge quoted Nafal (in his own words):

In Nafal v. Carter, the court faced a similar disconnect between the parties' label of a transfer of exclusive rights in a copyright assignment and the reality of their transfer.

[...]The court found that the assignment did not make the plaintiff a "co-exclusive licensee" with the right to sue for infringement because the assignment gave the plaintiff no discretion in deciding when to sue an alleged infringer; the plaintiff's interest in the copyrighted work would be terminable if the plaintiff did not bring an infringement lawsuit within a certain time period; nearly every effort by the plaintiff to exploit the copyrighted work had to be approved in advance; and the plaintiff did not offer facts that would permit the inference that he had rights to do anything beyond negotiating "compulsory mechanical licenses, which does not confer Plaintiff with the power to exploit any exclusive rights."

The issue was not "whether Nafal had the exact same rights as his co-exclusive licensee." It was whether Nafal held any exclusive rights at all. It is exactly the same situation as this case.

You're right that it involved pre-1976 copyright law. However, when cases aren't clear in case law post-1976, the courts sometimes look at pre-1976 law for precident - as they did in Gardner v. Nike, a case which you quoted.

All of those findings that Judge Pro pointed to from the Nafal case were misapplied in this case. I've explained exactly how already. You're making the same mistake he did. Nafal was found to not have standing because his rights weren't the same as his co-licensee. Did you read Nafal? The judge makes it perfectly clear that the test was whether the rights of Nafal and his co-licensee were the same. That's why that case is inapplicable here.

I have no idea why you're bringing up Nike. If you read Nafal, the judge explains in detail why his hands are tied and why he must apply the 1909 copyright laws. It wasn't because he couldn't find any precedent under the 1976 laws or the cases using them. It was because binding circuit precedent told him he had to, and under the 1909 laws which he was duty-bound to apply, Nafal didn't have standing as a matter of law. That's what makes the rest of his analysis pure dicta.

As to the rest of your post...

The SAA and the assignment did explicitly transfer ownership. Judge Pro even said as much, as I've quoted and explained above already. Yes, there was a license back. So what? Where does it say that once you grant a license back the prior assignment is as if it never happened? Nowhere.

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Read the opinion for yourself. It's not like I'm hiding anything. The opinion is embedded above. The rule of ownership comes from Sybersound and Silvers, but his analysis is based on erroneously analogizing to Nafal and Lahiri. I'm not debating his contention as to the rule stated in Sybersound or Silvers. That is the rule. He just misapplies it when he looks at Nafal and Lahiri. That's my argument, as explained in detail above.

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Sigh. I said the judge used Nafal and Lahiri. That is 100% true. Did I say those were the only cases he looked at? No.

Yes. This is what you said: "Judge Pro relies on two cases in his standing analysis: Nafal and Lahiri." Perhaps it was not what you meant to say, but "those were the only cases he looked at" is what any reasonable person would get from this sentence.

Nafal was found to not have standing because his rights weren't the same as his co-licensee. Did you read Nafal? The judge makes it perfectly clear that the test was whether the rights of Nafal and his co-licensee were the same. That's why that case is inapplicable here.

Yes, I did. And you're wrong. The issue was whether the plaintiff was a "co-exclusive owner" of the copyright. In the court's own words:

In order to be considered a co-owner of an exclusive license, Plaintiff must in some manner be similarly situated with respect to Sima, meaning that he has an independent and equivalent power to exercise his rights in the License Agreement. Unless this burden is satisfied, this Court must hold that Plaintiff has in effect been assigned the right to file this lawsuit — which has been barred by the Silvers Court. [Emphasis in original]

They held against Nafal, because:

First, Plaintiff is prohibited from exercising any decisionmaking authority over almost every portion of the License Agreement. In Paragraph 2, Plaintiff agrees that he cannot exploit Khosara, Khosara, absent Sima's express approval. There is merely one exception to this rule. Plaintiff can negotiate "standard industry agreements" on his own accord, of which there is only one specified example in the Assignment Agreement — mechanical license agreements. However, it is crucial to recognize that Plaintiff could be stripped of even this right if he had failed to file this lawsuit against the Defendants. Under Paragraph 10, Plaintiff's failure to file a lawsuit "relating to the song `Big Pimpin" within 180 days from the date" of the Assignment Agreement's signing would have given Sima the option of canceling it in its entirety.

Second, the Assignment Agreement does not confer upon Plaintiff any discretion to file a lawsuit for the alleged infringement of the exclusive license. Paragraph 10 required Plaintiff to file this lawsuit in order to avoid the Assignment Agreement's termination. This condition was undoubtedly inserted at Sima's insistence — if Plaintiff failed to file a lawsuit, Sima would have the option of finding someone else to do so for him. Additionally, Paragraph 5 states that no lawsuit other than the one against Big Pimpin' may be filed without Sima's advance approval. The Assignment Agreement leaves Plaintiff utterly impotent to decide how and when to enforce the License Agreement against infringers. It strains credulity to assert that Plaintiff has anything akin to a co-ownership right in an exclusive license, especially when compared to the independent rights enjoyed by each joint owner of a copyright under Section 201(a).

So, no, the issue was not whether Nafal (the plaintiff) "had the exact same rights as his co-exclusive licensee." The issue was whether the rights Nafal was granted were "independent and equivalent." And the court focused mainly on the "independent" part.

It is mostly the same situation as in Righthaven... except that Righthaven is claiming sole ownership while holding the same rights as Nafal. The case is entirely on point, 1909 rules or no.

About that... I hadn't read that part of the case yet. The reasoning behind using the 1909 rules in Nike and Nafal are totally different, you're right about that.

However, the ruling on standing is not merely dicta, as the standing issue was explicitly upheld by the appeals court:

First, assuming without deciding that the Copyright Act of 1976 governs standing in this case, and for the ample reasons articulated in the district court's opinion, the assignment documents at issue here did not actually grant Plaintiff an ownership interest in an exclusive copyright license. Rather, the documents were a disguised assignment of a cause of action prohibited under Silvers. Plaintiff appropriately concedes that he would lack standing to sue if he were not the coowner of the exclusive license. Consequently, the district court properly granted summary judgment to Defendants. [citations omitteed]

The SAA and the assignment did explicitly transfer ownership. Judge Pro even said as much,

Say what? Judge Pro ruled that it did not transfer ownership:

The Court finds the SAA in its original form qualifies the Assignment with restrictions or rights of reversion, such that in the end, Righthaven is not left with ownership of any exclusive rights.

Where does it say that once you grant a license back the prior assignment is as if it never happened?

The SAA predated, and controlled, any copyright assignments. Righthaven was prohibited from owning the copyrights before they were even assigned to Righthaven.

So, you're making a complete straw man argument. You have been for a while, in fact. The copyrights were never transferred to Righthaven in the first place. That is what everyone except you recognizes as the truth.

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Yes. This is what you said: "Judge Pro relies on two cases in his standing analysis: Nafal and Lahiri." Perhaps it was not what you meant to say, but "those were the only cases he looked at" is what any reasonable person would get from this sentence.

The other cases he looked at (Sybersound, Silvers, and I think there was another one, I can't remember at this point) were just to say what the rule is. No one denies what the rule is. That's not interesting. It's in his application of the rule that he used Nafal and Lahiri. And that's the interesting part. That's where I think he erred. Sorry if it's misled anyone. Didn't mean to.

Yes, I did. And you're wrong. The issue was whether the plaintiff was a "co-exclusive owner" of the copyright. In the court's own words:

In order to be considered a co-owner of an exclusive license, Plaintiff must in some manner be similarly situated with respect to Sima, meaning that he has an independent and equivalent power to exercise his rights in the License Agreement. Unless this burden is satisfied, this Court must hold that Plaintiff has in effect been assigned the right to file this lawsuit — which has been barred by the Silvers Court. [Emphasis in original]

You're a little confused here. It says "co-owner of an exclusive license." The court also refers to this as a "co-exclusive licensee." They mean exactly the same thing. In fact, if I recall correctly, the section you're quoting from is even called, "Whether Plaintiff is in Fact a Co-Exclusive Licensee?" A "co-owner of an exclusive license" is a "co-exclusive licensee."

So, no, the issue was not whether Nafal (the plaintiff) "had the exact same rights as his co-exclusive licensee." The issue was whether the rights Nafal was granted were "independent and equivalent." And the court focused mainly on the "independent" part.

Having the "exact same rights" is another way to say "independent and equivalent" rights. Not sure what your beef is with this.

It is mostly the same situation as in Righthaven... except that Righthaven is claiming sole ownership while holding the same rights as Nafal. The case is entirely on point, 1909 rules or no.

Righthaven is claiming to be the owner and licensor of those rights. Nafal didn't claim to be a licensor of the rights that his purported co-exclusive licensee possessed which he didn't. This is where the cases differ significantly, and why I think Nafal's situation is markedly different. A licensor retains an ownership interest where a licensee who has different rights than another licensee does not.

About that... I hadn't read that part of the case yet. The reasoning behind using the 1909 rules in Nike and Nafal are totally different, you're right about that.

However, the ruling on standing is not merely dicta, as the standing issue was explicitly upheld by the appeals court:

What's funny about that is I think the district court judge in the Nafal case got it wrong, and it was the 1976 Act that was in fact controlling of the issue. I think the judge analyzed it under both the 1909 Act and the 1976 Act just to be sure. Why the Ninth Circuit declined to correct this mistake puzzles me. I suspect they weren't sure either. The fact is that standing in the realm of intellectual property is quite elusive. It doesn't follow the same rules that typical Article III standing analysis does. It does its own thing.

But to be clear, since the district court judge had already held that the 1909 Act controlled and Nafal didn't have standing as a matter of law, then technically all of his analysis under the 1976 Act was by definition dicta. It doesn't matter if the circuit court agreed with that analysis--that doesn't transform it into something else. Basically, the Ninth Circuit panel is saying that they're not going to say whether the 1909 Act or the 1976 Act controls. If it's the 1909 Act, then Nafal doesn't have standing as a matter of law. It's not even worth mentioning, and in fact, they didn't even mention it. If it's the 1976 Act, then they said the district court's analysis is right under Silvers.

Of course, you need to remember what the test was that was being applied, namely whether Nafal had the same rights as his co-exclusive licensee. The circuit court does say that Nafal has no ownership interest, true, but I don't think that same analysis necessarily applies when you're talking about a licensor since a licensor can grant an exclusive license yet still have an ownership interest in the copyright. This is some really subtle shit, no?

Say what? Judge Pro ruled that it did not transfer ownership:

The Court finds the SAA in its original form qualifies the Assignment with restrictions or rights of reversion, such that in the end, Righthaven is not left with ownership of any exclusive rights.

First he said that the assignment transferred ownership to Righthaven. Then when he looks at what the SAA does and says that the restrictions it imposes means that ownership wasn't in fact transferred. I disagree with this analysis. When a licensor grants an exclusive license, that licensor still has an ownership interest in the copyright. I don't think the right of reversion or the other restrictions change the fact that ownership transferred to Righthaven. As the district court judge in the Nafal case explains, when an issue isn't preempted by federal law, you look to state law for contractual analysis. I think Judge Pro should have been analyzing the ownership issue under Nevada contract law.

The SAA predated, and controlled, any copyright assignments. Righthaven was prohibited from owning the copyrights before they were even assigned to Righthaven.

So, you're making a complete straw man argument. You have been for a while, in fact. The copyrights were never transferred to Righthaven in the first place. That is what everyone except you recognizes as the truth.

The SAA is to be read in conjunction with the assignment. I don't see it as Righthaven being prohibited from owning the copyright, I see it as Righthaven contracting to have ownership limited by certain conditions. Under contract law, though, I think ownership still transferred.

It's fun to chat with you about this. I will admit that I think both your interpretation and my interpretation have merit, and I'm coming around to the realization that perhaps neither one of us is wrong. That's the best I'll give you at this point. :)

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"these elements are not enough to consider the Work a purely "creative work" in the realm of fictional stories, song lyrics, or Barbie dolls. Accordingly, the Work is not within "the core of intended copyright protection. "

So if I scan an old book illustration, or take a photo of a a painting, or do a restore in an old painting.
The image is still in the public domain, because "these elements are not enough" ?

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It is well-established in the U.S. that scanning a public domain work does not grant a new copyright. In Europe things get a bit complicated because of "database rights" which do allow certain new rights to be created.

Of course, this is assuming you are scanning simply for the sake of format conversion, not adding some new creative aspect, so photography is a bit different. Digital photos of artwork that are acting as scans (just capturing the flat image) don't get copyrights in the U.S., though they can in other countries (note that the Google Art Project claims that its contents are copyrighted even though that is likely not true of works in U.S. museums)

Now, if you are engaging in some sort of artistic transformation, that's different. The most common example of this, I think, is a photograph of a statue/sculpture. Just like any other piece of photography, you would be granted copyrights over the creative elements you chose - lighting, framing, angle, etc. - but not over the sculpture itself. Of course, when the sculptor is still alive, you may face challenges from them over your photograph - there have been a few cases like this and I'm not entirely sure where the courts stand on it at the moment.

I am not sure about the law regarding restoration work so if anyone can elaborate on that I'd love to know more :)

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As I've stated in other comments, that's probably the right result on standing.

I think the court's fair use analysis (as summarized in the article) is a bit problematic, though, especially on the first and fourth factors.

Saying that the article is used to spur commentary is probably true, but I don't think it's used to spur commentary *on the article itself* but the facts discussed in the article. I don't think that's typically the type of commentary viewed as "fair use." For example, an article may discuss and criticize Barack Obama, or even Barack Obama's appearance, but that doesn't mean use of a photo to aid in that criticism is fair use under the first factor, whereas criticism *of the photo* would be.

Similarly, the requirement that the plaintiff show evidence of actual harm to have the fourth factor weigh in its favor isn't really in keeping with most opinions that say that an act is not likely to be considered fair use if it would harm the market (or potential market) if done in the aggregate. These rulings don't focus on the individual use at issue, but look at whether it would harm the market if done on a large scale.

Anyway, that's probably all secondary and any court who wants to disagree can dismiss it as dicta (since there was no standing to begin with), but those issues stood out to me.

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"Saying that the article is used to spur commentary is probably true, but I don't think it's used to spur commentary *on the article itself* ......"

That's a legitimate distinction, but I don't think the end result is all that different. If we have to, if we're forced to address the motive due to the rampant d-baggery of copyright sue-hounds, captioning a picture and crediting or referring to a cited work should be enough to extend fair use as you're drawing it in to the discussion as opposed to using it as page filler or window dressing to improve your article's appearance. From everything I've seen, the use of the article in this case, even if it wasn't made the center point of the discussion, meets several of the first factor's criteria specifically and the rest more generally.

"Similarly, the requirement that the plaintiff show evidence of actual harm to have the fourth factor weigh in its favor isn't really in keeping with most opinions that say that an act is not likely to be considered fair use if it would harm the market (or potential market) if done in the aggregate....."

And while that's a correct and logical sentiment in theory, in practice the concept has been abused by certain entities to heinous extents in terms of overblown impact and overstated damage. Citing an article in ways that appease the fair use criteria makes the article available to the reader and possible distribution. If you consider the value of your work based on scarcity and anything else contributing to impossibly-calculated damages, you're either arguing against the continued existence of fair use, or you're not-so-subtly trying to chip away until it becomes "fair useless", and goes the way of the dodo bird or the public domain.

All in all, petty semantics aside, this was a rare occasion when the written law and the moral and Common Sense interpretation of the law were walking hand in hand. And it was an epic failure on the part of an indefensible (even by Anonymous Cowards) copyright troll of the absolute worst kind. After all the horrendous interpretations of copyright law resulting from ignorance and fear-mongering, as Mike said it's nice to see some positive case law planted in the ground. To imply this is colored by the fact that Righthaven pissed off the judges and elicited an emotional response is hypocritical... creatures like this and their many corporate apologists and legal remoras/hyenas have been insulting the intelligence of judges for a while now, and it's refreshing to know some of them take offense.

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"captioning a picture and crediting or referring to a cited work should be enough to extend fair use as you're drawing it in to the discussion as opposed to using it as page filler or window dressing to improve your article's appearance"

Well, whether it should be or shouldn't be (and I don't think it should), it generally is not considered enough under the law, and this court does not appear to acknowledge that. I mean, in that case no newspaper would pay photographers for a license to use their photos in news articles.

"And while that's a correct and logical sentiment in theory, in practice the concept has been abused by certain entities to heinous extents in terms of overblown impact and overstated damage"

This I agree with. There is a bootstrapping problem when it comes to the fourth factor. Copyright holders try to demand licenses for every potential use, then say that because there is a market for that type of license, failure to pay the license harms the market or potential market. But that argument presumes that a license is required in the first place.

So, I think the law on the fourth factor is flawed, but I still think this judge's analysis of the fourth factor in this case is similarly flawed.

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Saying that the article is used to spur commentary is probably true, but I don't think it's used to spur commentary *on the article itself* but the facts discussed in the article. I don't think that's typically the type of commentary viewed as "fair use." For example, an article may discuss and criticize Barack Obama, or even Barack Obama's appearance, but that doesn't mean use of a photo to aid in that criticism is fair use under the first factor, whereas criticism *of the photo* would be.

That's another important distinction that Judge Pro did not make. The use for comment does weigh in the defendant's favor, but only if that comment is on the article itself--not the subject that the article is about. For example, you could quote it to explain why you think the author is a terrible author. Perhaps he dangles his participles and ends on prepositions. But quoting it for the purpose of commenting on something other than the article itself is not the test.

Similarly, the requirement that the plaintiff show evidence of actual harm to have the fourth factor weigh in its favor isn't really in keeping with most opinions that say that an act is not likely to be considered fair use if it would harm the market (or potential market) if done in the aggregate. These rulings don't focus on the individual use at issue, but look at whether it would harm the market if done on a large scale.

That's exactly right, and it's what I was going to post below. The fourth factor analysis is pretty bad here, and one can't help but think that Judge Pro doesn't read a lot of copyright law.

The fair use ruling is quixotic. Once the judge had granted the motion to dismiss for lack of standing, the issue of summary judgment on fair use became moot. It's strange that the judge went ahead and ran ruled on it.

That said, I think the judge's fair use analysis is severely flawed. Let's look at Judge Pro's full analysis of the elements, starting with the first:

1) The Purpose and Character of the Use The first factor of fair use is the purpose and character of the use. 17 U.S.C. § 107. Noncommercial, nonprofit use is presumptively fair. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 449 (1984). “The crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.” Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 562 (1985). “This factor focuses on whether the new work merely replaces the object of the original creation or instead adds a further purpose or different character. In other words, this factor asks whether and to what extent the new work is transformative.” A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1015 (9th Cir. 2001) (quotation omitted). If the character of the use differs from the original usage, the use may be considered fair. Worldwide Church of God v. Phila. Church of God, Inc., 227 F.3d 1110, 1117 (9th Cir. 2000) (duplicating a church’s religious book for use by a different church was not transformative and was not protected by fair use). However, mere transmission of a copyrighted work in a different medium is likely not fair use. Napster, 239 F.3d at 1015.

It is undisputed that Hoehn did not and could not profit from posting the Work. Under Sony, noncommercial/nonprofit use is presumptively fair. Additionally, this factor focuses on the purpose or character of the new work. Here, Hoehn posted the Work as part of an online discussion. Hoehn avers he posted the Work to foster discussion in a specific interactive website forum regarding the recent budget shortfalls facing state governments. This purpose is consistent with comment, for which 17 U.S.C. § 107 provides fair use protection. There is no genuine issue of material fact that Hoehn’s noncommercial use of the Work for comment favors a finding that the use was fair.

Right off the bat Judge Pro makes a critically erroneous assertion when he states that according to the Supreme Court in Sony: "Noncommercial, nonprofit use is presumptively fair." This is one of the so-called "Sony presumptions" that I've seen many courts misunderstand and misuse.

The Court in Sony said: "Every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of copyright." 464 U.S. at 451. Notice the Court did not say that the inverse of this is true, as Judge Par seems to think. They did not say that if it's noncommercial, then it is presumptively fair. Judge Par made that up, and it does not necessarily follow from what was actually said in Sony.

But that's not the worst of it. As explained by William Patry: "This passage has haunted fair use ever since . . . ." 11 Cardozo Arts & Ent LJ 667, 700. As explained by Patry, this statement is pure dicta and, more importantly, other language in the opinion makes it clear that this does not raise a technical presumption.

In fact, the Court in the later opinions (including Harper & Row) clarified that it's not actually a presumption and that courts have been misconstruing it. That Judge Pro isn't aware of this is telling--it indicates that copyright law is not his specialty.

What's more, when Sony was handed down there was some confusion over whether procedurally fair use was an affirmative defense. The Court later in Harper & Row clarified that fair use is in fact an affirmative defense. This necessarily means that the burden is on the defendant to prove each and every element of the defense. It makes no sense to say it's an affirmative defense and yet the presumption of any element favors the defendant. As Patry notes in the above cited article: "the burden of proving the defense should remain throughout on the party asserting it."

What this element boils down to is the issue of whether the use is transformative. Does the reposting of the entire article on a message board supersede the original use? I think it clearly does. Wholesale copying, without more, is hardly transformative. This element clearly favors Righthaven.

That is not to say that the noncommercial aspect should be ignored completely. It's relevant to the analysis on this element. It's not a presumption as the Judge seems to think though. While the noncommercial aspect favors Hoehn, the non-transformative aspect tilts the scale to Righthaven's favor.

Judge Pro seems to think that the fact Hoehn posted it on a message for others to comment on it somehow creates a transformative use. I don't agree. Notice how he cites no authority for the proposition that he makes here. Where does it say that wholesale copying for the purpose of allowing others to comment it on it makes it transformative enough to make this factor weigh in the favor of the defendant? It doesn't.

Judge Pro probably didn't put too much effort into this assertion because he already had erroneously determined that the defendant enjoyed a procedural presumption. But still it begs the question: Could he have? And what about the fact that the work was originally posted on a website that allows comments? Couldn't people just comment on it there? Why does the defendant get to supersede the plaintiff's actual use, without more, and have that be transformative? That makes no sense to me.

I'll run through the other elements when I get back... I have a meeting to attend at the moment.

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The fair use ruling is quixotic. Once the judge had granted the motion to dismiss for lack of standing, the issue of summary judgment on fair use became moot. It's strange that the judge went ahead and ran ruled on it.

I see it as an attempt to let Righthaven know where they stand and subtlety preempt any more of their ignorant stupidity. Like I said, it is only an attempt and as we've seen so far, very likely to fail. It appears that Righthaven has a very thick skull, and it will take many more times at bat before the knowledge of the judgment ball finally reaches into the depths of their casaba melon.

Righthaven lesson for the day - If you fail, try, try again. But give up soon unless want to look like an idiot.

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I think you're partially right. The judge probably knows that the standing issue is not well-settled as a matter of law, so there's a possibility his ruling could get overturned on appeal, and he wants to give the appeals court another ruling they could use as a basis to affirm the result (and let Rightshaven know that any appeal could be rejected on either of the two grounds).

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I think you're partially right. The judge probably knows that the standing issue is not well-settled as a matter of law, so there's a possibility his ruling could get overturned on appeal, and he wants to give the appeals court another ruling they could use as a basis to affirm the result (and let Rightshaven know that any appeal could be rejected on either of the two grounds).

I'm thinking the same thing. It's interesting too that he also analyzed the standing issue assuming arguendo that the amended agreement between Righthaven and Stephens could have retroactive effect, and decided that they still lacked standing. What he didn't do was actually rule on whether that agreement could take effect retroactively. So in a sense, he left the Ninth Circuit with three ways to affirm him instead of two: with the amended agreement, without it, and fair use.

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Right off the bat Judge Pro makes a critically erroneous assertion when he states that according to the Supreme Court in Sony: "Noncommercial, nonprofit use is presumptively fair." This is one of the so-called "Sony presumptions" that I've seen many courts misunderstand and misuse.

The Court in Sony said: "Every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of copyright." 464 U.S. at 451. Notice the Court did not say that the inverse of this is true, as Judge Par seems to think. They did not say that if it's noncommercial, then it is presumptively fair. Judge Par made that up, and it does not necessarily follow from what was actually said in Sony.

The purpose of copyright is to create incentives for creative effort. Even copying for noncommercial purposes may impair the copyright holder's ability to obtain the rewards that Congress intended him to have. But a use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted work need not be prohibited in order to protect the author's incentive to create. The prohibition of such noncommercial uses would

Page 464 U. S. 451

merely inhibit access to ideas without any countervailing benefit.

Thus, although every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright, noncommercial uses are a different matter. A challenge to a noncommercial use of a copyrighted work requires proof either that the particular use is harmful or that, if it should become widespread, it would adversely affect the potential market for the copyrighted work. Actual present harm need not be shown; such a requirement would leave the copyright holder with no defense against predictable damage. Nor is it necessary to show with certainty that future harm will result. What is necessary is a showing by a preponderance of the evidence that some meaningful likelihood of future harm exists. If the intended use is for commercial gain, that likelihood may be presumed. But if it is for a noncommercial purpose, the likelihood must be demonstrated.

The bold paragraph tells it all. Righthaven needs to read and understand the difference between commercial and noncommercial when it comes to what they are presumed to have on their side, and when they will need to come up with a "preponderance of the evidence", to prove their side of the suit.

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But that language does not create a presumption of fair use for noncommercial uses.

Moreover, from the quotes in the article, the judge did not analyze the "if it should become widespread" part. Rather, he apparently required a showing of actual harm, rather than a likelihood of future harm should the practice become widespread.

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A good distinction, but it's still not "presumptively" non damaging. It's just that the plaintiff has the burden of proof on that issue. That and having a presumption against something is usually not treated the same by a court (although, there are different kinds of "presumptions").

I'm not sure about a linchpin, but it is something the court got wrong and appears to have applied to the entire fair use analysis. It's something an appeals court could use to reverse and remand for further proceedings (or just to do the fair use analysis over again).

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So, in generaly, a plaintiff always has to put forth some evidence to support every element of the claim they are alleging, but court's don't say that this is a "presumption" that a defendant is non liable; it's just the standard burden of proof.

This is a bit of a shift in the burden of proof in this particular pointm, since fair use is treated as a defense, and defendants usually have the burden of proof on defenses.

Presumptions can be of the "bubble-bursting" variety, where something is presumed until *any* evidence to the contrary is introduced, at which point it just comes down to a preponderance of the evidence (i.e., which is more likely).

Presumptions can also be of the substantive variety, and of various strength, meaning the person trying to overcome the presumption must put for a higher than normal amount of evidence to prove their version of the facts.

While this can all can seem sort of esoteric and nit-picky, it can make a big deal in how a court decides issues.

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It may not say a presumption of fair use for noncommercial uses, but it does put the onus back on Righthaven to provide a preponderance of evidence to prove the harm, present or future.

As for the practice becoming widespread, one merely needs to look at almost any forum on the web to see that it is already happening everywhere and this case will be just one of many that will decide what road we head down in the future. Whether we will be allowed to repost entire or partial articles for noncommercial use, or only be allowed to translate the article into some sort of unspecific vagueness as to not be sued for copyright infringement based on rules that change from website to website, and day to day.

One oddity, the Righthaven model depends on people copying their work. Without infringers, they don't have a business. So anyone copying the works could argue that they are increasing commericial value to Righthaven.

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But I italicized it and separated the sentences! Isn't that transformative enough to keep me out of some overzealous lawyers crosshairs? What if I get promises from others to read it only in a noncommercial way?

(Damn! If only Mike's site had choices for different types of fonts and colors, I might be ok.)

Maybe I should patent the "Jayku" method, that way if he sues for copyright infringement, I'll sue right back for patent infringement. I'll be like the rest of big companies, never using my patent to crush a competitor, but merely protecting myself from the evil that surrounds me... til someone who has no defenses infringes on it, then all bets are off! Now, that's more like the big companies.

It's called "Fair Use Misconstrued: Profit, Presumptions, and Parody." It takes a long while to load for some reason, but it has a great discussion of mistakes that courts make in analyzing fair use as I think Judge Pro did here, so it's worth the wait.

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The Patry article

I am about halfway through it already, and I don't have the faintest clue why you think it supports your case. In fact, Patry seems to be arguing against exactly the sort of fair use analysis that you are using in this thread:

There is a natural tendency to treat statutory language as carved in stone, as rigid rules rather than broad guidelines. [...] Rather than looking to the plain language of section 107 in its entirety in light of its purpose as a confirmation of judge-made law, courts have isolated and overemphasized individual words and phrases, taking as limitations on their power language intended as guidance.

Truthfully, looking over Patry's description of how fair use should be judged, and all of the case law he quotes, I would be very surprised if he would not consider this use to be fair.

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Surprisingly, I think both points are valid readings of the document. However, I'm more inclined to agree with Karl's reading of this, mostly because it feels eminently more sensible than thew AC who linked it.

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The Patry article

Okay, I just finished the whole thing. And I'm really certain you are practicing cherry-picking here.

The quote you used ("This passage has haunted fair use ever since"), was used in the context of allowing fair use, even of commercial material. The thrust of the article is that the courts had adopted a "bright line" standard of "commercial use means not fair use."

His contention, instead, is that fair use should be judged in light of the benefit it provides for public discourse; and that even if a use is commercial, it may still be fair.

It should also be noted that he wrote this just before the Supreme Court decided the "2 Live Crew" case. The Ninth Circuit had found against fair use, mostly using the aforementioned "bright line" rule. He was critical of their decision. After the article was written, the Supreme Court sided with him.

The use in this Righthaven case is clearly for the sole purpose of furthering public discourse. And, for that matter, is not for commercial advantage in any way, and has a minimal (if any) impact on the commercial value of the work. This is exactly the sort of use that Patry argues should be fair. You're using the article to support a position that is in polar opposition to what he was actually trying to say.

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The quote I gave from the article was about courts misunderstanding the "Sony presumptions" as Judge Pro did here. Whether it's misconstrued to find fair use or find infringement is irrelevant. The issue is that courts often misunderstand what was meant in Sony, and they often miss the fact that the Court clarified later what they really meant. Every single thing I said about the Patry article was correct, and your nitpicking is completely missing the mark.

I was not using the article to support the notion that the use here should not be fair. I was using it for the notion that courts often screw up the fair use analysis.

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The quote I gave from the article was about courts misunderstanding the "Sony presumptions" as Judge Pro did here.

Perhaps he was wrong when he said that non-commercial use is "presumptively" fair. On the other hand, the Napster judges said essentially the same thing: "[a] challenge to noncommercial use of a copyrighted work requires proof either that the particular use is harmful, or that if it should become widespread, it would adversely affect the potential market for the copyrighted work." So, it might not have been true when Patry wrote his article, but it's apparently true now.

Regardless, it would be better if he had said "tips the balance of this factor in favor of" fair use, a phrase I think Patry would have agreed upon. Of course, if he had said that, then his analysis would otherwise remain unchanged, and he still would have found fair use.

1. Even if non-commercial use is not "presumptively" fair, its non-commercial aspect tips this in favor of fair use. Additionally, this article was posted as a comment on the defendant's website. As such, it is itself commentary on news reporting. The balance of this factor tips squarely towards fair use.

2. In the judge's words, "because the Work contains a significant informational element, the scope of fair use is greater than it would be for a creative work, but likely less than it would for a purely informational work." Accordingly, it tilts this factor towards fair use (barely).

3. The entire work was copied. So, the balance of this factor is tipped squarely against fair use. The judge said as much, though he also said (accurately) that "while wholesale copying of the Work shifts this factor against finding fair use, wholesale copying does not preclude a finding of fair use."

4. In the judge's words, "Righthaven has not presented any evidence of harm or negative impact from Hoehn’s use of the Work on the Website between November 29, 2010 and January 6, 2011" - when the article was available on the defendant's website. "Merely arguing that because Hoehn replicated the entirety of the Work the market for the Work was diminished is not sufficient to show harm." Nor did they actually present any evidence of potential harm, even if this use were widespread. So this factor, again, favors fair use. (Whether that's due to the nature of the use, or to Righthaven's incompetence in not showing harm, is up to you to decide.)

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On the other hand, the Napster judges said essentially the same thing

I just realized, the Napster judges were actually quoting Sony!

Here's the full quote:

Thus, although every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright, noncommercial uses are a different matter. A challenge to a noncommercial use of a copyrighted work requires proof either that the particular use is harmful or that, if it should become widespread, it would adversely affect the potential market for the copyrighted work.

In other words: Noncommercial, nonprofit use is presumptively fair. It is the reverse that is not necessarily true. That is the "Sony presumption" Patry was talking about.

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I just realized, the Napster judges were actually quoting Sony!

Here's the full quote:

Thus, although every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright, noncommercial uses are a different matter. A challenge to a noncommercial use of a copyrighted work requires proof either that the particular use is harmful or that, if it should become widespread, it would adversely affect the potential market for the copyrighted work.

In other words: Noncommercial, nonprofit use is presumptively fair. It is the reverse that is not necessarily true. That is the "Sony presumption" Patry was talking about.

Sorry I didn't catch this earlier.

You're misunderstanding what's being said there. When they say that proof is required, what they mean is that absent any proof, the analysis doesn't lean one way or the other. If it were a presumption, then absent proof, it would still lean a certain way. It's subtle, but it's important. There is no presumption either way. That's what Patry explains in his article.

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Perhaps he was wrong when he said that non-commercial use is "presumptively" fair. On the other hand, the Napster judges said essentially the same thing: "[a] challenge to noncommercial use of a copyrighted work requires proof either that the particular use is harmful, or that if it should become widespread, it would adversely affect the potential market for the copyrighted work." So, it might not have been true when Patry wrote his article, but it's apparently true now.

Regardless, it would be better if he had said "tips the balance of this factor in favor of" fair use, a phrase I think Patry would have agreed upon. Of course, if he had said that, then his analysis would otherwise remain unchanged, and he still would have found fair use.

He was definitely wrong when he said that. What the judge in Napster is saying is that proof is needed to establish the factor either way. There is no presumption either way. If neither side presents proof one way or the other, then the factor doesn't count either way. If it were actually a presumption, then even absent corroborating proof the factor would lean one way.

1. Even if non-commercial use is not "presumptively" fair, its non-commercial aspect tips this in favor of fair use. Additionally, this article was posted as a comment on the defendant's website. As such, it is itself commentary on news reporting. The balance of this factor tips squarely towards fair use.

But the commentary isn't on the article itself, e.g., "This guy doesn't know how to use the pluperfect tense or the subjective mood, look at how bad his writing is." That's what is meant by "comment" in 107--commenting on the article itself, not commenting on the topic that the article is about. Wholesale copying and pasting without comment means it's not transformative and this factor goes to Righthaven, even if it's noncommercial.

2. In the judge's words, "because the Work contains a significant informational element, the scope of fair use is greater than it would be for a creative work, but likely less than it would for a purely informational work." Accordingly, it tilts this factor towards fair use (barely).

I disagree with this since the article is both informational and creative. Even if you extract the factual element, there is still the creative part that is protected. I think this factor favors Righthaven.

3. The entire work was copied. So, the balance of this factor is tipped squarely against fair use. The judge said as much, though he also said (accurately) that "while wholesale copying of the Work shifts this factor against finding fair use, wholesale copying does not preclude a finding of fair use."

This factor definitely favors Righthaven, for obvious reasons.

4. In the judge's words, "Righthaven has not presented any evidence of harm or negative impact from Hoehn’s use of the Work on the Website between November 29, 2010 and January 6, 2011" - when the article was available on the defendant's website. "Merely arguing that because Hoehn replicated the entirety of the Work the market for the Work was diminished is not sufficient to show harm." Nor did they actually present any evidence of potential harm, even if this use were widespread. So this factor, again, favors fair use. (Whether that's due to the nature of the use, or to Righthaven's incompetence in not showing harm, is up to you to decide.)

I think it harms Righthaven because it's a direct market substitute. All that has to be shown is a likelihood that some future harm exists should the defendant's use become widespread. People simply copying the article wholesale and posting it everywhere would likely present such a harm. This factor favors Righthaven as well.

The fact is, it's not fair use to simply copy and paste a whole article, not without more. If that's fair use, then that means I can simply post entire copyrighted works online and that'll be fair use. That's not what fair use is about.

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What the judge in Napster is saying is that proof is needed to establish the factor either way. There is no presumption either way. If neither side presents proof one way or the other, then the factor doesn't count either way.

What the Sony ruling (not Napster, as explained above, sorry) said, is that "a challenge to a noncommercial use of a copyrighted work requires proof" of harm. This seems to suggest that non-commercial use is, indeed, presumptively non-infringing (or at least that it presumptively tips the scale of that factor to fair use). Nothing in Patry says otherwise; he was talking about the reverse (the idea that commercial use is presumptively infringing).

But the commentary isn't on the article itself

It's up to the judge to decide whether this counts as "commentary" or not. (As an aside, you might be confusing this with the "parody" test.) Since the intent of fair use is clearly to allow public discourse, especially on newsworthy events, I think the judge made the right call.

I disagree with this since the article is both informational and creative.

It is more informational than it is creative, and this is how the judge determined this factor. He also said that this factor is the least important of all of them, which I think is true.

I think it harms Righthaven because it's a direct market substitute.

Obviously, I disagree. I don't think your average person is going to search for a comment buried on a random website, instead of going to the source. I doubt very much that this comment caused a decline in Stephens' page views (so there is no actual harm); and I think it would be hard to show that "some meaningful likelihood of future harm exists," since nearly all content producers deliberately encourage this use.

Regardless, as Sony makes clear, in non-commercial infringement cases, the burden of proving harm falls on Righthaven. Righthaven didn't prove it. Perhaps they could have, but they didn't.

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What the Sony ruling (not Napster, as explained above, sorry) said, is that "a challenge to a noncommercial use of a copyrighted work requires proof" of harm. This seems to suggest that non-commercial use is, indeed, presumptively non-infringing (or at least that it presumptively tips the scale of that factor to fair use). Nothing in Patry says otherwise; he was talking about the reverse (the idea that commercial use is presumptively infringing).

The Court clarified what they meant later on in Campbell:

Sony itself called for no hard evidentiary presumption. There, we emphasized the need for a “sensitive balancing of interests,” 464 U.S., at 455, n. 40, 104 S.Ct., at 795, n. 40, noted that Congress had “eschewed a rigid, bright-line approach to fair use,” *585 id., at 449, n. 31, 104 S.Ct., at 792, n. 31, and stated that the commercial or nonprofit educational character of a work is “not conclusive,” id., at 448-449, 104 S.Ct., at 792, but rather a fact to be “weighed along with other[s] in fair use decisions,” id., at 449, n. 32, 104 S.Ct. at 792, n. 32, (quoting House Report, p. 66) U.S.Code Cong. & Admin.News 1976, pp. 5659, 5679. The Court of Appeals's elevation of one sentence from Sony to a per se rule thus runs as much counter to Sony itself as to the long common-law tradition of fair use adjudication. Rather, as we explained in Harper & Row, Sony stands for the proposition that the “fact that a publication was commercial as opposed to nonprofit is a separate factor that tends to weigh against a finding of fair use.” 471 U.S., at 562, 105 S.Ct., at 2231. But that is all, and the fact that even the force of that tendency will vary with the context is a further reason against elevating commerciality to hard presumptive significance.

Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 584-85 (1994).

It's up to the judge to decide whether this counts as "commentary" or not. (As an aside, you might be confusing this with the "parody" test.) Since the intent of fair use is clearly to allow public discourse, especially on newsworthy events, I think the judge made the right call.

The commentary needs to have a "critical bearing on the substance or style of the original composition" itself. From the Court:

For the purposes of copyright law, the nub of the definitions, and the heart of any parodist's claim to quote from existing material, is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works. See, e.g., Fisher v. Dees, supra, at 437; MCA, Inc. v. Wilson, 677 F.2d 180, 185 (CA2 1981). If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another's work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger.

Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 580 (1994).

It is more informational than it is creative, and this is how the judge determined this factor. He also said that this factor is the least important of all of them, which I think is true.

I disagree with the mathematical approach the judge took. I don't think it works like that.

Obviously, I disagree. I don't think your average person is going to search for a comment buried on a random website, instead of going to the source. I doubt very much that this comment caused a decline in Stephens' page views (so there is no actual harm); and I think it would be hard to show that "some meaningful likelihood of future harm exists," since nearly all content producers deliberately encourage this use.

They don't encourage people to copy and paste their entire article without commentary on the article itself. You can't just copy and paste and call it fair use. That's not the point of having fair use.

Regardless, as Sony makes clear, in non-commercial infringement cases, the burden of proving harm falls on Righthaven. Righthaven didn't prove it. Perhaps they could have, but they didn't.

And if they didn't show that there would be harm, the factor doesn't count against them unless the other side showed there was no harm--a task that's not necessarily any easier to prove.

Really though, by your definition of fair use, I can just post whatever I want and it's all good as long as I don't make any money off it. That's just not the reality of fair use though.

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The Court clarified what they meant later on in Campbell

This clarification seems to be saying the same thing Patry is saying: that commercial use is not automatically not fair use. It cautions against a "bright-line approach" to fair use, but only insofar as courts consider commerial use to be infringing use.

I did say that "it presumptively tips the scale of that factor to fair use." Though it's literally inconsistent with what the Sony court said, I think that's actually what they meant. The quote you posted seems to confirm this suspicion. But either way, the "first factor" test tips towards fair use.

The commentary needs to have a "critical bearing on the substance or style of the original composition" itself.

Here, you're just proving my suspicion - for the courts were not considering "commentary," but "parody." That is explicit: "the heart of any parodist's claim to quote from existing material..."

I disagree with the mathematical approach the judge took. I don't think it works like that.

I think it's a fair consideration. Obviously, works that simply recite pure facts are not protected by copyright; whereas works that are entirely fictional, are more protected. Judging whether the original work is purely fact or fiction obviously has an impact on fair use. Like the other factors, this one should be a sliding scale, so it's not at all inappropriate that the judge should fix the original work at some point on that scale.

And, again, he said this is the least important factor for considering fair use, which I also agree with. A lot has been made of this analysis, but even if this had tipped the scale to Righthaven/Stephens, I don't think the overall ruling would have changed.

They don't encourage people to copy and paste their entire article without commentary on the article itself.

But every other newspaper does - as do almost every blogger, Twitter user, etc. And they do it because doing so adds more value to the work than not doing so. The practice is already widespread, and it is already accepted that uses such as this do not diminish the original work's value (quite the opposite).

The LVJR is free to do things that reduce their articles' value, of course. However, if they do this, they will be hard pressed to show that they're doing anything but reducing the articles' value. And that is required when showing damages, even potential damages, against non-commercial copying under the Sony standard.

Now, I'm not saying that they still couldn't show damage, just that they would be really hard-pressed to do so. As they should be, frankly. No other content producer on this planet honestly belives that this sort of use diminishes the content's value. Most content producers would sell their grandmas on the black market for this sort of "infringement."

Really though, by your definition of fair use, I can just post whatever I want and it's all good as long as I don't make any money off it.

Nice straw man. Nowhere did I say that. I said (and do say) that if you post my material and don't make any money off it, it's up to me to prove it's damaging.

If I can prove it's damaging, then "it's all good" for me. But not for you, since I can destroy your business, or (if you're not a business) take all your wages from now until you die.

This clarification seems to be saying the same thing Patry is saying: that commercial use is not automatically not fair use. It cautions against a "bright-line approach" to fair use, but only insofar as courts consider commerial use to be infringing use.

I did say that "it presumptively tips the scale of that factor to fair use." Though it's literally inconsistent with what the Sony court said, I think that's actually what they meant. The quote you posted seems to confirm this suspicion. But either way, the "first factor" test tips towards fair use.

Let me give you some analysis of the first factor that I think is much better. The district court here is looking at almost the same exact fact pattern as we have here. And notice that the defendant is arguing that the wholesale copying is alright because it's for commentary. The court doesn't buy it, and they point to lots of other cases that didn't buy similar arguments either:

Plaintiffs Los Angeles Times and The Washington Post publish newspapers in print and online versions. Defendant Free Republic is a “bullenn board” website whose members use the site to post news articles to which they add remarks or commentary. Other visitors to the site then read the articles and add their comments. For the most part, Free Republic members post the entire text of news articles; among these are verbatim copies of news articles from the Los Angeles Times and Washington Post websites.

***

1. The Purpose And Character Of The Use

The first factor listed in § 107 is “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit aducational purposes.” 17 U.S.C. § 107. This factor assesses whether “the new work ‘merely supersedes the objects' of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is ‘transformative.”’ Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1995) (quoting Folsom v. Marsh, 9 F.Cas. 342, 348 (D. Mass. 1841)). “...[T]he more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.” Campbell, supra, 510 U.S. at 579.

Inquiry into the character and purpose of a challenged use should be guided by the examples provided in the statute - i.e., whether the use was for purposes of “criticism, comment, news reporting, teaching ..., scholarship or research.” 17 U.S.C. § 107; Campbell, supra. This list, however, is not intended to be exhaustive or to single out any particular use as presumptively fair. Harper & Row, supra, 471 U.S. at 561. Indeed, the fact that a use falls within one of these categories “is simply one factor in [the] fair use analysis.” Id. Similarly, while the statute draws a distinction between non-profit and commercial use, not every commercial use of a copyrighted work is presumptively unfair. Campbell, supra, 510 U.S. at 579.

a. Extent To Which Free Republic's Work Is Transformative

There is no dispute that at least some of the articles posted on the Free Republic website are exact copies of plaintiffs' articles. While defendants assert there is “no evidence” before the court that the thousands of Times and Post news articles that have been posted are verbatim copies, they have presented no evidence that they are not.30 Defendants bear the burden of proof on the issue of fair use. To the extent they wish to rely on the fact that something other than exact copies of news articles are posted, therefore, they must come forward with evidence demonstrating that this is so. Since they have not, the court will assume for purposes of assessing the first fair use factor that verbatim copies of complete articles or portions of articles are used.31

There is nothing transformative about copying the entirety or portions of a work verbatim. See Nihon Keizai Shimbun, 166 F.3d at 72 (where the infringing news abstracts were “for the most part direct translations of Nikkei articles,” the court found that the first factor “weigh[ed] strongly against fair use”); Los Angeles News Service v Reuters Television Int'l, 149 F.3d 987, 993 (9th Cir. 1998) (unauthorized copying of news footage “was not very transformative” because the defendant did “not explain the footage, edit the content of the footage, or include editorial comment”); Infinity Broadcast Corp. v. Kirkwood, 150 F.3d 104, 108 (2d Cir. 1998) (finding that “[t]here is no transformation” where the defendant retransmitted original broadcasts over the telephone); Religious Technology Center v. Netcom On-Line Communication Services, Inc., 923 F.Supp. 1231, 1243 (N.D.Cal. 1995) (“Netcom On-Line II ”) (defendant's posting of some of plaintiffs' copyrighted material on the Internet was “only minimally transformative since, unlike the typical critic, [defendant] adds little new expression to the Church's works”).

Defendants argue that the posting of plaintiffs' articles on the Free Republic website is transformative because registered visitors add comments and criticism following each article. They distinguish Nihon Keizai Shimbun on this basis, concluding that the additions make the posting significantly more transformative than a translated abstract. Adding commentary to a verbatim copy of a copyrighted work or portions thereof does not transform the work, especially where the first posting of the article by a Free Republic user often contains little or no commentary. See Twin Peaks Productions, Inc. v. Publications International, Ltd., 996 F.2d 1366, 1375-76 (9th Cir. 1993) (the fact that defendant “detailed ... the plots [of episodes of a television series]... far beyond merely identifying their basic outline for the transformative purposes of comment or criticism” weighed against a finding of fair use because “abridgment[s] of a copyrighted work [are] ... likely to be found to be prima facie infringing,” and defendant's “abridgment ... elaborate [d] in detail far beyond what is required to serve any legitimate [transformative] purpose”); Toho Co., Ltd. v. William Morrow And Co., Inc., 33 F.Supp.2d 1206 (C.D.Cal. 1998) (relying, inter alia, on the fact that the infringing work contained detailed plot summaries of the Godzilla movies to find that the first fair use factor weighed in favor of the copyright plaintiff, despite the fact that the work also contained “numerous biographies [and] analyses of the movies, including commentary, trivia and other bits of information”).

In Netcom On-Line II. supra, defendant posted verbatim copies of works copyrighted by the Church of Scientology on an Internet website “with little or no added comment or criticism.” Id. at 1243. The court found that the works were only “minimally transformative” because “unlike the typical critic, [defendant] add[ed] little new expression to the Church's works.” Id. The court specifically rejected defendant's argument that his copying was fair use within the meaning of 17 U.S.C. § 107(1) because subsequent visitors added further comments, concluding that while the copying of “works that were previously posted by their authors on the basis of an implied license or fair use argument” might be justified, such a defense would not be available “where the first posting made an unauthorized copy of a copyrighted work.” Id. at 1247, n.18.32

Similarly, in Religious Technology Center v. Lerma, 1996 WL 633131 (E.D.Va. 1996), defendant copied portions of works copyrighted by the Church of Scientology by downloading or scanning them into his computer and posting segments on the Internet. Id. at *4. He argued that his use was transformative, because he was a “dedicated researcher delving into the theory and scholarship of Scientology,” and was “providing materials which ‘add new value to public knowledge and understanding, thereby advancing the goals of copyright as set forth in the Constitution.”’ Id. at *5. The court rejected this argument, noting that it did “not justify the wholesale copying and republication of copyrighted material,” and that “[t]he degree of copying by [defendant] combined with the absence of commentary on most of his Internet postings, is inconsistent with the scholarship exception” Id.33

The court similarly rejected defendant's assertion that “saving ... postings [from Internet newsgroups] for later review is indistinguishable from the temporary storage [of a television program] on a VCR tape that was upheld by the Supreme Court in Sony Corp. of America v. Universal Studios, Inc., 464 U.S. 417 (1984).” Id. at *6. Unlike the defendant in Sony, the court stated, defendant was “not licensed to view or copy the Works” copyrighted by the Church. Id. Given this fact, it observed, the more appropriate analogy was to a situation in which “the Sony defendant obtained an unauthorized copy of a television movie from a premium cable channel and then re-broadcast [it] on a public access channel.” This, the court noted, “would be clearly prohibited.” Id.34

Defendants argue that, whether or not their copying is transformative, the first factor nonetheless should weigh in their favor because their general purpose is criticism - a purpose different than that served by posting the articles on the Times and Post websites. Defendants contend that posting articles on the Times and Post websites permits visitors to read current news and research archived articles published in the two newspapers. They contrast this with the purpose of posting articles to the Free Republic site, i.e., to enable visitors to comment upon and criticize media coverage of current events. Defendants assert that using the Free Republic site to read current articles would be impractical since there is a delay between the time information is posted to the site and the time it is indexed by third-party search engines.35 Additionally, they contend that the imprecision of searches would make it difficult to locate archived articles on their site. Plaintiffs dispute these claims, noting that the Free Republic's search engine provides immediate search capability.36 More fundamentally, they assert, even if the general purpose of posting the articles is to foster comment and criticism, ultimately the purpose is the same as “that [for which] one would normally seek to obtain the original - to have it available ... for ready reference if and when [website visitors adding comments] need[] to look at it.” American Geophysical Union v. Texaco, Inc., 60 F.3d 913, 918 (2d Cir. 1995) (court found that the first fair use factor weighed against a defendant that encouraged its employees to make unauthorized photocopies of articles in scientific and medical journals and keep them in their offices for ready reference).

It appears clear that the primary purpose of posting articles to the Free Republic site is to facilitate the discussion, criticism and comment of the registered users that follows. The mere fact that criticism is involved, however, does not warrant an automatic finding that the first factor favors defendants. See Harper & Row, supra, 471 U.S. at 561 (list contained in § 107 is not intended to be exhaustive or to single our any particular use as presumptively fair). Rather, this fact must be weighed together with other considerations in assessing whether the first fair use factor favors defendants. See Twin Peaks, supra, 996 F.2d at 1375-76 (“‘Purpose’ in fair use analysis is not an all-or-nothing matter. The issue is not simply whether a challenged work serves one of the non-exclusive purposes identified in section 107, such as comment or criticism, but whether it does so to an insignificant or a substantial extent. The weight ascribed to the ‘purpose’ factor involves a more refined assessment than the initial, fairly easy decision that a work serves a purpose illustrated by the categories listed in section 107”).

b. Commercial Nature Of The Free Republic Website

The parties vigorously dispute whether defendants' operation of the Free Republic website is for commercial or non-profit purposes, as those terms are used in § 107. Their argument focuses on the for-profit or not-for-profit status of Free Republic, and on the extent to which defendants' operation of the website generates revenue, donations, and commissions. Defendants argue that Free Republic is a non-profit organization and that they make no money from operating the website.

The undisputed evidence reveals that Free Republic is currently a for-profit company. It also demonstrates that Free Republic solicits donations from visitors to the website who wish to support its mission and operations.37 In addition to these direct solicitations, defendants concede that they have facilitated links to third-party web pages where donations to Free Republic and/or Robinson are requested, and where Free Republic-related souvenir items are offered to donors.38 Additionally, the Free Republic page advertises the website design services available through Electronic Orchard, and contains links to Electronic Orchard clients.39 Defendants maintain that these links have been included as a courtesy to Electronic Orchard customers, and that they receive no revenue from them. Accepting this as true, the fact that Electronic Orchard's services are advertised and that Robinson is able to provide free links for his clients' businesses demonstrates that he and Electronic Orchard derive goodwill, if nothing else, from operation of the Free Republic site. Consequently, the court concludes that defendants stand to profit from operation of the website in a variety of ways.40

The relevant inquiry, however, “is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.” Harper & Row, supra, 471 U.S. at 562.41 Here, defendants and registered third-party visitors to the Free Republic site copy and post plaintiffs' news articles, which are then available to others visiting the site free of charge. Since the general purpose of the site is to provide a forum where individuals can discuss current events and media coverage of them, pasting copies of plaintiffs' articles assists in attracting viewers to the site. This in turn enhances defendants' ability to solicit donations and generate goodwill for their operation and Robinson's other business.

The decision of the court in Marobie-FL, Inc. v. National Assoc. of Fir Equipment Distributors, 983 F.Supp. 1167 (N.D.Ill. 1997), is instructive in this regard. There, defendant was a non-profit organization that placed copyrighted clip art on its website without paying the copyright owners. Id. at 1175. Despite defendant's non-profit status, the court found that “its conduct [could] still be considered commercial.” Id. It reasoned that defendant had obtained copies of the clip art for free, although they would ordinarily have cost money, and then made the files available on its website to members and other Internet users without charge. Id. This was beneficial to it, since the organization used the website “for the commercial purposes of promoting the association (whose members pay dues) and generating advertising revenue.” Id. For this reason, the court concluded that defendant's use of the clip art “enhanced the Web Page and furthered ... commercial purposes.” Id. See also Television Digest, Inc. v. United States Telephone Assoc., 841 F.Supp. 5, 9-10 (D.D.C. 1993) (court concluded that non-profit national trade association's duplication and distribution of a copyrighted newsletter was not a non-commercial use because the trade association saved money by photocopying one subscription issue rather than ordering the number of subscriptions it required per reader).

Like the organization in Marobie-FL, defendants benefit from having copies of plaintiffs' articles available free of charge to viewers visiting their website. The fact that the articles are posted on the web page allows visitors to review archived material without paying the fee they would be charged if they visited plaintiffs' websites. It also enhances the Free Republic page and promotes support for the operation. Consequently, the court concludes that the use is commercial as that term is used in § 107, regardless of Free Republic's profit or non-profit status or motives.

c. Conclusion Regarding First Fair Use Factor

Balancing all aspects of the character and purpose inquiry, the court concludes that the first fair use factor favors plaintiffs. In Sony, the Supreme Court emphasized the need for a “sensitive balancing of interests,” and eschewed a “a rigid, bright-line approach.” Sony, supra, 464 U.S. at 455, n. 40 Here, the factors to be considered are the verbatim nature of the copying, the minimally transformative nature of the use, the fact that the copying is designed to facilitate comment and criticism, the fact that defendants' web page is enhanced by use of the articles, and that fact that the copying assists in generating support, both financial and non-financial, for their operation. Balancing all of these considerations, the court finds that the first factor weighs against a finding of fair use in this case. See Rogers v. Koons, 960 F.2d 301, 309 (2nd Cir. 1992) (“[T]hough it is a significant factor, whether the profit element of the fair use calculus affects the ultimate determination of whether there is fair use depends on the totality of the factors considered, it is not itself controlling”); Marcus v. Rowley, 695 F.2d 1171, 1176 (9th Cir. 1983) (“[W]holesale copying of copyrighted material precludes application of the fair use doctrine”);42 Netcom On-Line II, supra, 923 F.Supp. at 1243 (“despite Erlich's purported critical purpose, the actual character of his use does not weigh heavily in his favor because it has only a slight transformative nature”); Lerma, supra, 1996 WL 633131 at *5 (“The degree of copying by Lerma, combined with the absence of commentary on most of his Internet postings, is inconsistent with the scholarship exception”); Marobie-FL, supra, 983 F.Supp. at 1175 (use of copyrighted clip art was commercial, inter alia, since it assisted the non-profit defendant's “promoti [on of its] association.”).

Now that's analysis. How many paragraphs was Judge Pro's first factor analysis? Exactly. And almost all of what he said was simply wrong.

The first factor favors Righthaven for the same reasons. Wholesale copying is not transformative, and the site where the article was posted to stood to gain from the postings by more pageviews. I just went to the website where Hoehn posted the article at issue in this case and saw that they have ads. http://madjacksports.com/ Your whole analysis, and Judge Pro's as well, seems to focus on the wrong things.

Here, you're just proving my suspicion - for the courts were not considering "commentary," but "parody." That is explicit: "the heart of any parodist's claim to quote from existing material..."

Parody is a subset of commentary. Whatever the court says about parody necessarily applies to commentary.

I think it's a fair consideration. Obviously, works that simply recite pure facts are not protected by copyright; whereas works that are entirely fictional, are more protected. Judging whether the original work is purely fact or fiction obviously has an impact on fair use. Like the other factors, this one should be a sliding scale, so it's not at all inappropriate that the judge should fix the original work at some point on that scale.

And, again, he said this is the least important factor for considering fair use, which I also agree with. A lot has been made of this analysis, but even if this had tipped the scale to Righthaven/Stephens, I don't think the overall ruling would have changed.

Keep in mind that the article that was copied was an opinion column from a newspaper. Regardless, courts have looked at wholesale copying of news articles that didn't have any opinion in them and decided this factor against the copyist.

But every other newspaper does - as do almost every blogger, Twitter user, etc. And they do it because doing so adds more value to the work than not doing so. The practice is already widespread, and it is already accepted that uses such as this do not diminish the original work's value (quite the opposite).

The LVJR is free to do things that reduce their articles' value, of course. However, if they do this, they will be hard pressed to show that they're doing anything but reducing the articles' value. And that is required when showing damages, even potential damages, against non-commercial copying under the Sony standard.

Now, I'm not saying that they still couldn't show damage, just that they would be really hard-pressed to do so. As they should be, frankly. No other content producer on this planet honestly belives that this sort of use diminishes the content's value. Most content producers would sell their grandmas on the black market for this sort of "infringement."

I highly doubt that "no other content producer on this planet honestly believes that this sort of use diminishes the content's value." The content on the original site gets pageviews which brings in money to pay for overhead and reporters' salaries, etc. It cost nothing for the copyist to just copy and paste. It brings in money wherever they paste the material if that site is ad-driven.

Nice straw man. Nowhere did I say that. I said (and do say) that if you post my material and don't make any money off it, it's up to me to prove it's damaging.

If I can prove it's damaging, then "it's all good" for me. But not for you, since I can destroy your business, or (if you're not a business) take all your wages from now until you die.

It's not a strawman at all. Using your logic, I can upload and embed an entire e-book, song, movie, or article and it'll be fair use. Tell me why it wouldn't be fair use if you disagree with my argument.

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Let me give you some analysis of the first factor that I think is much better.

The situation is very different in this case.

1. In the Judge's words, "Hoehn has never been employed by the Website’s owner and operator.[...] Hoehn avers that he did not post the Work for profit and that there was no mechanism for him to profit by posting the Work on the website." Hoehn's use was absolutely non-commercial.

2. Even if the site owner was the defendant, the character of the websites is totally different. If you go to the MadJack site, the vast majority of the forum posts are not news items at all. Unlike the Free Republic website, the MadJack site is not used primarily "to post news articles to which they add remarks or commentary." That's not why users use that site; and posting the news article was not designed to (and likely did not have the effect of) drawing users to the site, or away from the LVJR site.

3. The ruling you quoted did not deny that the Free Republic's use was for commentary and criticism. They found that "the mere fact that criticism is involved, however, does not warrant an automatic finding that the first factor favors defendants. [...] Rather, this fact must be weighed together with other considerations in assessing whether the first fair use factor favors defendants."

4. Unlike the Free Republic case, the users are not getting something they otherwise would have to pay for; the LVJR is not behind a paywall, and the article in question is free to read by all.

The factors that tipped the scale against fair use in the Free Republic case, are totally absent from this one.

How many paragraphs was Judge Pro's first factor analysis? Exactly. And almost all of what he said was simply wrong.

His analysis was more brief, because there were less factors to consider in this case. And you have yet to show how anything he said was outright wrong.

Parody is a subset of commentary. Whatever the court says about parody necessarily applies to commentary.

Why is parody a "subset" of commentary? I don't think anyone actually claimed that before.

Even if true, your statement is a fallacy of composition. All dogs have four legs, and all dogs bark, thus everything that has four legs barks. See the problem here?

courts have looked at wholesale copying of news articles that didn't have any opinion in them and decided this factor against the copyist.

Can you name one that did? Obviously, courts have found that in certain cases, copying news articles is not fair use. But I don't think any of them found this factor against fair use. There's certainly no reason they should have, if they were following Dr. Seuss v. Penguin Books, or Hustler v. Moral Majority, as Judge Pro did.

I highly doubt that "no other content producer on this planet honestly believes that this sort of use diminishes the content's value."

"No other content producer" is probably an exaggeration. But if you've got your article online for free, and someone posts it on an unrelated forum, with credit, and a link back to your site... Well, I don't think there are very many newspapers, journalists, bloggers, or authors that would think the article's value has actually diminished.

Many of those guys use RSS feeds, with the entire article embedded, for exactly such uses... because they know it drives users to their sites, and gets them more page views, and more advertising dollars (if applicable). Even the NYT paywall makes exceptions for users that come from sites like Facebook or Twitter. This isn't some sort of "information wants to be free" rubric; it's an industry-wide recognition that the more their information is shared, the more valuable it becomes.

Given all that, I think that "a showing by a preponderance of the evidence that some meaningful likelihood of future harm exists" would be very difficult, though not impossible.

It's not a strawman at all. Using your logic, I can upload and embed an entire e-book, song, movie, or article and it'll be fair use.

It is a strawman, because I never claimed that "I can upload and embed an entire e-book, song, movie, or article and it'll be fair use." I claimed that if you did that, purely non-commercially, I would need to show a likelihood of harm. If I charged for that e-book, song, movie or article; or charged for access to it; or I had some sort of royalty system in place for embedding or uploading, which you didn't pay... then bam, I'm done.

It's still possible that your use was fair, of course... but it's not very likely. There would have to be some pretty overwhelming reasons to tip the scales back to fair use, but you didn't present any, so the use you describe would not be fair use. And I never said it would be.

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I disagree with every single thing you just posted, but you're wearing me out and we're going in circles. Tell you what. Can you cite any case that's similar to this where an entire article was posted and it was ruled to be fair use? Not counting Righthaven cases, of course.

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And the court says the use of the photo was different than its original use: "Rather, what is important here is that plaintiffs' photographs were originally intended to appear in modeling portfolios, not in the newspaper; the former use, not the latter, motivated the creation of the work. Thus, by using the photographs in conjunction with editorial commentary, El Vocero did not merely “supersede[ ] the objects of the original creation[s],” but instead used the works for “a further purpose,” giving them a new “meaning, or message.” Campbell, 510 U.S. at 579, 114 S.Ct. 1164. It is this transformation of the works into news-and not the mere newsworthiness of the works themselves-that weighs in favor of fair use under the first factor of § 107."

You don't have that situation here. As the long analysis I quoted above notes: "Adding commentary to a verbatim copy of a copyrighted work or portions thereof does not transform the work, especially where the first posting of the article by a Free Republic user often contains little or no commentary."

Even if you don't agree that it's commercial (and I don't think you're viewing that part correctly), it's not transformative. It's exactly what is meant by a market substitute, IMO. There's simply nothing transformative about copying an op-ed piece in its entirety from a website that allows commentary, and then posting it on another website that allows commentary. That's not transformative in any way.

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"Adding commentary to a verbatim copy of a copyrighted work or portions thereof does not transform the work

From what I understand, the work was not posted so that people could comment on it. It was posted as a comment. It was posted as part of a forum thread about politics. If I quoted an entire news article as a reply in this comment I'm writing right now, it would be an analogous situation.

Is that "sufficiently" transformative? I don't know, but it is at least minimally transformative, in that its purpose is different (as in Nunez).

And "transformative" is only a part of fair use analysis. Even if it was not transformative at all, other factors can still tip the balance towards fair use.

Even if you don't agree that it's commercial (and I don't think you're viewing that part correctly),

How so? The case law is pretty clear. Whether the entity that uses the material is a commercial entity is, well, immaterial. The question is whether they stand to gain financially, directly or indirectly, through the infringement itself.

Neither the defendant, nor the website where the defendant posted the material, stood to gain financially, either indirectly or directly; it provided neither with any commercial advantage whatsoever. Nor was commercial advantage intended by either party (obviously).

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From what I understand, the work was not posted so that people could comment on it. It was posted as a comment. It was posted as part of a forum thread about politics. If I quoted an entire news article as a reply in this comment I'm writing right now, it would be an analogous situation.

That makes no difference if was posted for comment or as a comment. If you posted an entire news article as a reply--as a comment--that doesn't mean it's a "comment" under 107. That's not what "comment" means. That makes no sense. If you posted an entire news article here, then that would most likely be infringement.

Is that "sufficiently" transformative? I don't know, but it is at least minimally transformative, in that its purpose is different (as in Nunez).

That's not transformative at all, as explained in the excerpt I posted above.

And "transformative" is only a part of fair use analysis. Even if it was not transformative at all, other factors can still tip the balance towards fair use.

Maybe, but I'm focusing on the first factor. I think you've got all the factors wrong, but that discussion will have to wait for another day.

Neither the defendant, nor the website where the defendant posted the material, stood to gain financially, either indirectly or directly; it provided neither with any commercial advantage whatsoever. Nor was commercial advantage intended by either party (obviously).

Absolutely false. The website attracted more users. More users means more page views. Since the site is ad-driven, more page views means more money. I already said this above. They also gained in the way of goodwill. This was also explained above in the excerpt I posted.

How so? The case law is pretty clear. Whether the entity that uses the material is a commercial entity is, well, immaterial. The question is whether they stand to gain financially, directly or indirectly, through the infringement itself.

The website that the article was posted on stood to gain, as did the person who posted it. The gain needn't necessarily be financial. That's explained in the excerpt I posted too.

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That makes no difference if was posted for comment or as a comment. If you posted an entire news article as a reply--as a comment--that doesn't mean it's a "comment" under 107. That's not what "comment" means. That makes no sense. If you posted an entire news article here, then that would most likely be infringement.

I doubt very much that any judge would find that to be infringement.

And why would it not be considered "commentary?" That's often lumped in with "criticism," but those two are also distinct, just as they're both distinct from "news reporting" or "research."

Also, keep in mind that the list in 107 is not exhaustive. Congress here was giving examples in order to show the general idea behind fair use. Allowing copyrighted materials to be used in an ongoing discussion about news events seems perfectly in line with that idea.

That's not transformative at all, as explained in the excerpt I posted above.

Of course it is. It transforms the purpose of the work. It is no longer merely a static news story; it becomes part of an ongoing and public debate. That transformation is well within the intent of having fair use laws in the first place.

To illustrate this, let's look at another case: Warren Publishing Co. v. Spurlock. Spurlock used monster magazine covers in a commercial book about Gogos (the artist who created the covers). Warren Publishing (arguably) owns the copyright on many of those covers, and sued. Spurlock's use was found to be fair use, because "the Gogos Book presents these images for an entirely different purpose" - despite the fact that many were used verbatim, magazine logo and all.

The judge quotes another judge, Pierre N. Leval, from "Toward a Fair Use Standard." It seems apropos to repeat it here:

Quoting is not necessarily stealing.

Quotation can be vital to the fulfillment of the public-enriching goals of copyright law. The first fair use factor calls for a careful evaluation whether the particular quotation is of the transformative type that advances knowledge and the progress of the arts or whether it merely repackages, free riding on another's creations. [Emphasis mine]

Use within a public and ongoing discussion of political events is precisely the type of "transformation" that "advances knowledge," and completely in line with the fundamental purpose of fair use.

It is not a sufficient transformation to automatically make the use fair, but it does weigh in favor of fair use.

I think you've got all the factors wrong, but that discussion will have to wait for another day.

I guess it's a good thing you're not a federal judge.

Absolutely false. The website attracted more users. More users means more page views. Since the site is ad-driven, more page views means more money.

Do you honestly believe that if the article were not posted, page views would have been significantly lower? I find the idea to be pure bunkum. People simply do not go to that site to read newspaper articles.

On the other hand, your argument shows why this use probably benefitted the LVJR. The chance of people going to MadJack Sports instead of the LVJR, specifically to read newspaper articles, is absolutely nil. However, the chance that MadJack users will see the news article, and then go to the LVJR's site, is significant.

In either case, the amount of money involved is abysmally small. If even 100 people failed to go to the LVJR's site (a number I find completely unbelievable), the the LVJR would only lose about a dollar, if that.

The website that the article was posted on stood to gain, as did the person who posted it. The gain needn't necessarily be financial. That's explained in the excerpt I posted too.

In the excerpt you posted, you realize that "goodwill" was related to the ability to solicit donations, right? It was brought up by the court because this goodwill brought financial benefits. If it did not, I doubt the court would have even mentioned it.

And how on Earth is a user of the site, with no other affiliation to that site, supposed to gain in any material way?